FOI 20 32 Decision 170720.pdf

Reference:
FOI 20/32
Contact:
FOI Team
Telephone:
(02) 6215 1783
e-mail:
xxx@xxxxxxx.xxx.xx
Mr John Smith

via email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx;

Dear Mr Smith,

Freedom of Information Request – FOI 20/32
Thank you for your email to the Department of the Treasury (Treasury), dated 5 June 2020,
in which you sought access to the following under the Freedom of Information Act 1982
(FOI Act).

I request a copy of the contract signed between the department of the Treasury, and
Ernst & Young; associated with tender ID CN3681381.

On 20 June 2020, you were notified that your request would be processed by Finance, in
part, on the basis that the subject-matter of the document identified was more closely
connected with the functions of Finance.

The purpose of this letter is to provide you with my decision.

Authorised decision-maker
I am authorised by the Secretary under subsection 23(1) of the FOI Act to grant or deny
access to documents under the FOI Act.

Decision
I have decided to refuse access to (1) document, in part under section 22, section 45,
section 47, section 47E and section 47F of the FOI Act.

The document is identified in the Schedule at Attachment A.

Material considered in making decision
In making my decision, I have had regard to the following:
  the scope of your FOI request dated 5 June 2020;
  the content of the documents that fall within the scope of your request;
  the relevant provisions of the FOI Act; and
  the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).

1
One Canberra Avenue, Forrest ACT 2603  Telephone 02 6215 2222
Internet www.finance.gov.au

Reasons for decision

Section 22 – Access to an edited copy with irrelevant matter deleted

Section 22 of the FOI Act provides that where I have decided to give access to a document
that would disclose information that would reasonably be regarded as irrelevant to your FOI
request, I am able to prepare a copy of the document with modifications or deletions that
ensure that irrelevant information is not disclosed.

Having regard to the above, I note that on 30 June 2020 Finance acknowledged your FOI
request and advised that unless you otherwise objected, junior officer (non-SES) names and
contact details would be redacted from relevant documents under section 22 of the FOI Act
as irrelevant to your request. Finance also advised you that signatures would be excluded
from any documents released, unless publicly available. As we did not receive any
objections from you, we have redacted this material from the document.

Section 45 - Documents containing material obtained in confidence

Section 45 of the FOI Act provides:

(1)  A document is an exempt document if its disclosure under this Act would found
an action, by a person (other than an agency or the Commonwealth), for breach of
confidence.

For a document to be exempt in part under section 45, I must be satisfied that full disclosure
would found an action by a person (other than an agency or the Commonwealth) for breach
of confidence.

The FOI Guidelines, at paragraph 5.159, state that:
To found an action for breach of confidence (which means s 45 would apply), the
following five criteria must be satisfied in relation to the information:
  it must be specifically identified
  it must have the necessary quality of confidentiality
  it must have been communicated and received on the basis of a mutual
understanding of confidence
  it must have been disclosed or threatened to be disclosed, without authority
  unauthorised disclosure of the information has or will cause detriment

Document 1 includes confidential commercial information, namely an agreed pricing
structure relating to the provision of business advisory services by Ernst & Young (EY) to
the Commonwealth. This information has been communicated by EY on the basis of a
mutual understanding of confidence between EY and the Commonwealth and unauthorised
disclosure of that information would cause detriment to the Commonwealth and EY. For this
reason, I am satisfied that the document is exempt in part under section 45(1) of the FOI
Act.

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Section 47 - Documents disclosing trade secret or commercially valuable information

Section 47 of the FOI Act provides:

(1) A document is an exempt document if its disclosure under this Act would
disclose:
(a) trade secrets; or
(b) any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information
were disclosed.

For a document to be exempt in part under section 47, I must be satisfied that it contains
trade secrets, or commercially valuable information which would be, or could reasonably be
expected to be, destroyed or diminished by disclosure.

The FOI Guidelines, at paragraph 5.204, state that:

It is a question of fact whether information has commercial value, and whether
disclosure would destroy or diminish that value. The commercial value may relate,
for example, to the profitability or viability of a continuing business operation or
commercial activity in which an agency or person is involved. The information need
not necessarily have ‘exchange value’, in the sense that it can be sold as a trade
secret or intellectual property.

Further, the FOI Guidelines (at paragraph 5.204) also provide a list of factors that may assist
in deciding whether information has commercial value. These are:

  whether the information is known only to the agency or person for whom it has
value or, if it is known to others, to what extent that detracts from its intrinsic
commercial value
  whether the information confers a competitive advantage on the agency or
person to whom it relates — for example, if it lowers the cost of production or
allows access to markets not available to competitors
  whether a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain that
information
  whether disclosing the information would reduce the value of a business
operation or commercial activity — reflected, perhaps, in a lower share price.

Document 1 contains trade secrets and commercially valuable information which would, or
could reasonably be expected to, be destroyed or diminished by disclosure, specifically the
agreed pricing structure between Finance and EY for the provision of business advisory
services as well as agreed terms specific to the arrangement between Finance and EY. This
information is commercially sensitive, is not available in the public domain and is known
only to a limited group of people.  In addition, the Business Advisory Panel, which is the
arrangement through which Document 1 was executed, will expire and any replacement
would be expected to be subject to a competitive tender process.

In light of the specific arrangements between Finance and EY, and the potential for a
competitive tender process relating to the general provision of the Commonwealth’s
business advisory services, I consider that disclosure in full of the commercially sensitive
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Document 1 would have a detrimental effect on the tender process and the Commonwealth’s
future ability to negotiate with tendering parties. I also consider that full disclosure of
Document 1 would provide a competitive advantage to parties who may wish to tender for
future business advisory services, and place EY at a competitive disadvantage should they
wish to tender for future services of this kind.

For these reasons, I am satisfied that the document is also exempt, in part, under
section 47(1)(a) and (b) of the FOI Act.

Section 47E – certain operations of agencies conditional exemption

Section 47E(d) of the FOI Act provides:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following: …
(d)  have a substantial adverse effect on the proper and efficient conduct of
the operations of an agency.
I consider that full disclosure of Document 1 would have a substantial adverse affect on the
capacity of Finance to properly manage the Business Advisory Panel and any future tender
process. Specifically, full disclosure would be likely to negatively impact Finance’s ability
to effectively and competitively negotiate future pricing structures, and the terms for
business advisory services for both Finance and other Commonwealth agencies accessing
the current and any future related panel arrangements. Further, the full disclosure would
have the effect of undermining Finance’s relationships with its stakeholders, including other
agencies involved and current and future tenders.

I therefore consider that full release of Document 1 would, or could reasonably be expected
to, have a substantial adverse effect on an agency’s proper and efficient conduct of
operations and I am therefore satisfied that the documents are exempt in part under section
47E of the FOI Act.

Section 47F – personal privacy conditional exemption

Section 47F of the FOI Act provides that:

(1) A document is conditionally exempt if its disclosure under this Act would involve
the unreasonable disclosure of personal information about any person (including a
deceased person).

Consistent with section 4 of the FOI Act and section 6 of the Privacy Act 1988, personal
information means information or an opinion, whether true or not, and whether recorded in a
material form or not, about an individual who is reasonably identifiable.

For information to be conditionally exempt under section 47F, I must first be satisfied that
the information is personal information. I am satisfied that Document 1 contains personal
information as it identifies information about individuals who are not known to be
associated with the matters dealt with in the document, and which is not available from
publicly accessible sources.

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To that end, the personal privacy exemption is designed to prevent the unreasonable
invasion of privacy. Subsection 47F(2) of the FOI Act provides that:

(2) In determining whether the disclosure of a document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to
have been) associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.

I am satisfied that the relevant information contained in Document 1 is not well known.
Specifically, the details of the relevant officer from Finance and the authorised signatory
from EY, is not available from publicly accessible sources.

In considering other matters that are relevant, I have also had regard to the following factors
identified in paragraph 6.143 of the FOI Guidelines and the decision of ‘FG’ and National
Archives of Australia [2015] AICmr 26 (13 April 2015):

  the nature, age and current relevance of the information;
  any detriment that disclosure may cause to the person to whom the information
relates;
  any opposition to disclosure expressed or likely to be held by that person;
  the circumstances of an agency’s collection and use of the information;
  the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act;
  any submission an FOI applicant chooses to make in support of their application as
to their reasons for seeking access and their intended or likely use or dissemination
of the information; and
  whether disclosure of the information might advance the public interest in
government transparency and integrity.

I am of the view that disclosure of the personal information identified in the document may
cause detriment to the individual concerned. I have considered the third party submissions
received and the circumstances of Finance’s collection and use of the relevant information
within Document 1, as well as the nature, age and relevance of the information in question.
Where the relevant officers are no longer employed by either of the contracting parties, and
these officers are not known to be associated with the matters dealt with in Document 1,
I consider that the detriment that disclosure may cause to the individuals to whom the
information relates outweighs the advance in government transparency and integrity that
would arise from the disclosure of the relevant information within the document.

Noting the above, I have formed the view that it would be an unreasonable disclosure of
personal information to release Document 1 in full and I am therefore satisfied that the
conditional exemption under section 47F of the FOI Act applies.

5

Public interest test

Having formed the view that the document within the scope of your request is subject to the
conditional exemptions under section 47E and section 47F of the FOI Act, I am now
required to consider the public interest test for the purposes of determining whether access
to this conditionally exempt document would, on balance, be contrary to the public interest.

Subsection 11B(3) of the FOI Act provides:

(3) Factors favouring access to the document in the public interest include whether
access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in
sections 3 and 3A);
(b) inform debate on a matter of public importance; [and]
(c) promote effective oversight of public expenditure;

In addition to the above I have also had regard to paragraph 6.19 of the FOI Guidelines
which provide a non-exhaustive list of further factors that may favour disclosure.

In my view, the factors favouring disclosure in this case include that it would promote the
objects of the Act and would further promote effective oversight of public expenditure. Full
disclosure may also inform debate on a matter of public importance.

The FOI Act does not list any factors weighing against disclosure, however the FOI
Guidelines provide a non-exhaustive list of factors against full disclosure at paragraph 6.22.
These factors, like those favouring disclosure, will depend on the circumstances. I have
considered these factors and have determined that the following are relevant considerations:

  could reasonably be expected to prejudice the agency’s ability to obtain confidential
information;
  could reasonably be expected to prejudice the agency’s ability to obtain similar
information in the future;
  could reasonably be expected to prejudice the competitive commercial activities of
the agency;
  could reasonably be expected to prejudice the protection of an individual’s right to
privacy; and
  could reasonably be expected to prejudice the management function of the agency.

I have not given any consideration to the irrelevant factors prescribed in subsection 11B(4)
of the FOI Act.

I have therefore determined to give greater weight to the factors against full disclosure in
this case and consider that it would be contrary to the public interest to provide access to the
full document identified under the FOI Act. I am satisfied that the conditional exemptions
under sections 47E and 47F of the FOI Act are satisfied and have therefore decided to
exempt the document identified in part, consistent with the exemptions provided under these
sections of the FOI Act.

6

Review and appeal rights
You are entitled to request an internal review or a review by the Office of the Australian
Information Commissioner (OAIC) of my decision. The process for review and appeal
rights is set out at Attachment B.
Publication
The FOI Act requires Commonwealth agencies to publish:
  information in documents to which the agency routinely gives access in response to
FOI requests except where that information is exempt under the FOI Act; and
  information in documents released under the FOI Act.

Subject to certain exceptions, any documents provided to you under the FOI Act will be
published on Finance’s FOI Disclosure Log (www.finance.gov.au). Finance’s policy is to
publish the documents within one working day after they are released to you.

Further Information
If you have any questions in regards to this matter, please contact the FOI Team on the
contact details provided.

Yours sincerely,

Cameron Jose
A/g Assistant Secretary
Commercial Policy and Advisory
Department of Finance

17 July 2020

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ATTACHMENT A
SCHEDULE OF DOCUMENTS RELEVANT TO FOI REQUEST No. 20/32

Document No.
No. of Pages
Description of Document
Decision
1
46
Document in relation to the contract signed between Release in part. Material exempted under section 45,
the Department of the Treasury, and Ernst &
section 47, section 47E and section 47F of the FOI
Young.
Act.

8
Department of Finance

ATTACHMENT B

Freedom of Information – Your Review Rights
If you disagree with the decision made by the Department of Finance (Finance) under the Freedom
of Information Act 1982 (the FOI Act), you can ask for the decision to be reviewed. You may want
to seek review if you sought certain documents and were not given full access, if you have been
informed that there will be a charge for processing your request, if you have made a contention
against the release of documents that has not be agreed to by Finance, or if your application to
have your personal information amended was not accepted. There are two ways you can ask for
review of a decision: internal review by Finance, or external review by the Australian Information
Commissioner.
Internal Review
(s 54M(2)(a)), refusals to extend the period

for applying for internal review under s 54B (s
If Finance makes an FOI decision that you
54L(2)(c)), and agency internal review
disagree with, you can ask Finance to review
decisions under s 54C (ss 54L(2)(b) and
its decision. The review will be carried out by
54M(2)(b)).
a different agency officer, usually someone at

a more senior level. There is no charge for
If you are objecting to a decision to refuse
internal review.
access to documents, impose a charge or
You must apply within 30 days of being
refuse to amend a document, you must apply
notified of the decision, unless Finance
to the IC within 60 days of being given notice
agrees to extend the application time. You
of the decision. If you are objecting to a
should contact Finance if you wish to seek an
decision to grant access to another person,
extension.
you must apply within 30 days of being
Finance is required to make a review decision
notified of that decision.
within 30 days. If Finance does not do so, the

original decision is considered to be affirmed.
Do I have to go through Finance’s internal

review process first?
How to apply for internal review

No. You may apply directly to the IC.
You must apply in writing and should include
However, going through Finance’s internal
a copy of the notice of the decision provided
review process gives Finance the opportunity
and the points you are objecting and why.
to reconsider its initial decision, and your
You can lodge your application in writing
needs may be met more quickly without
through one of the contact details provided
undergoing an external review process.
at the end of this document.

Do I have to pay?
Review by the Australian Information

Commissioner (IC)
No. Review by the IC is currently free.

The IC is an independent office holder who
can review the decisions of agencies and
ministers under the FOI Act. The IC can
review access refusal decisions (s 54L(2)(a) of
the FOI Act), access grant decisions
9
Department of Finance

How do I apply?
Investigation by the Ombudsman

You must apply for IC review in writing and
The Commonwealth Ombudsman can also
you can lodge your application in one of the
investigate complaints about action taken by
following ways:
agencies under the FOI Act.  However, if the

issue complained about either could be or
Post:  Office of the Australian Information
has been investigated by the IC, the
Commissioner
Ombudsman will consult the Commissioner
GPO Box 2999
to avoid the same matter being investigated
CANBERRA   ACT   2601
twice.  If the Ombudsman decides not to
Email:  xxxxxxxxx@xxxx.xxx.xx
investigate the complaint, then they are to
Fax:    02 9284 9666
transfer all relevant documents and
In person:
Level 3
information to the IC.
175 Pitt Street
The IC can also transfer a complaint to the
SYDNEY   NSW   2000
Ombudsman where appropriate. This could

occur where the FOI complaint is only one
An electronic application form is also
part of a wider grievance about an agency’s
available on the OAIC’s website
actions.  It is unlikely that this will be
(www.oaic.gov.au).  Your application should
common. You will be notified in writing if
include a copy of the notice of the decision
your complaint is transferred.
that you are objecting to (if one was
Applications to the Ombudsman should be
provided), and your contact details.  You
directed to the following address:
should also set out why you are objecting to

the decision.
Post:  Commonwealth Ombudsman

PO Box 442
Making a complaint
CANBERRA   ACT   2601

Phone: 02 6276 0111
You may make a written complaint to the IC
1300 362 072
about actions taken by Finance in relation to

your application. However, if you are
Finance FOI contact details
complaining that a Finance decision is wrong,
FOI Coordinator
it is treated as an application for review. For
Legal and Assurance Branch
further information, see FOI fact sheet 13 –
Department of Finance
Freedom of Information: How to make a
One Canberra Avenue
complaint.
FORREST  ACT  2603

Phone:  02 6215 1783
When can I go to the Administrative Appeals
Email:  xxx@xxxxxxx.xxx.xx
Tribunal (AAT)?
Website:

https://www.finance.gov.au/about-
Under the FOI Act, you must seek external
us/freedom-information
review through the IC prior to applying to the

AAT for such a review. The fee for lodging an

AAT application is currently $932 (from 1 July

2019), although there are exemptions for

health care and pension concession card

holders and the AAT can waive the fee on
financial hardship grounds.

10
Department of Finance